At the Defense Department, Shiffrin, the deputy general counsel for intelli- gence, and a career lawyer rather than a political appointee, was taken aback when Haynes showed him the order. Earlier in Shiffrin's career, at the Justice Department, his office had been in the same room where the Nazi defendants were tried, and he had become interested in the case, which he said he regarded as "one of the worst Supreme Court cases ever." He recalled informing Haynes that he was skeptical of the Administration's invocation of Qyirin. "Gee, this is prob- lematic," Shiffrin told him. Marine Major Dan Mori, the uni- formed lawyer who has been assigned to defend David Hicks, one of the ten ter- ror suspects in Guantánamo who have been charged, said of the commissions, "It was a political stunt. The Administra- tion clearly didn't know anything about military law or the laws of war. I think they were clueless that there even was a U.C.M.J. and a Manual for Courts- Martial! The fundamental problem is that the rules were constructed by people with a vested interest in conviction." Mori said that the charges against the detainees reflected a profound legal con- fusion. "A military commission can try only violations of the laws of war," he said. "But the Administration's lawyers didn't understand this." Under federal criminal statutes, for example, conspiring to commit terrorist acts is a crime. But, as the Nuremburg trials that followed the Second World War established, under the laws of war it is not, since all soldiers could be charged with conspiring to fight for their side. Yet, Mori said, a charge of conspiracy "is the only thing there is in many cases at Guantánamo-guilt by as- sociation. So you've got this big prob- lem." He added, "I hope that nobody confuses military justice with these 'mil- itary commissions.' This is a political process, set up by the civilian leadership. It's inept, incompetent, and improper." Under attack from defense lawyers like Mori, the military commissions have been tied up in the courts almost since the order was issued. Bellinger and others fought to make the commissions fairer, so that they could withstand court challenges, and the Pentagon gradually softened its rules. But Administration lawyers involved in the process said that Addington resisted at every turn. He in- sisted, for instance, on maintaining the admissibility of statements obtained through coercion, or even torture. In meetings, he argued that officials in charge of the military commissions should be given maximum flexibility to decide whether to include such evidence. "T or- ture isn't important to Addington as a såentific matter, good or bad, orwhether it works or not," the Administration law- yer, who is familiar with these debates, said. "It's more about his philosophy of Presidential power. He thinks that if the President wants torture he should get torture. He always argued for 'maximum flexibility.' " Last month, Addington lost this in- ternal battle. The Administration re- scinded the provision allowing coerced testimony, after even the military officials overseeing the commissions supported the reform. According to a senior Ad- ministration legal adviser who partici- pated in discussions about the commis- sions, Addington remained opposed to the change. "He wanted no changes," the lawyer said. "He said the rules were good, right from the start." Addington accused officials who were trying to re- form the rules of "giving away the Pres- ide nt's prerogatives." President Bush has blamed the legal challenges for the delays in prosecuting Guantánamo detainees. But many law- yers, even some inside the Administra- tion, believe that the challenges were inevitable, considering the dubious con- stitutionality of the commissions. The Supreme Courts ruling in the Hamdan case is expected to establish whether the commissions meet basic standards of due process. The Administration lawyer isn't sanguine about the outcome. "It shows again that Addington over- reached," he said. M eanwhile, Addington has fought tirelessly to stem reform of other controversial aspects of the New Para- digm, such as the detention and interro- gation of terror suspects. Last year, he and Cheney led an unsuccessful cam- paign to defeat an amendment, proposed by Senator John McCain, to ban the abusive treatment of detainees held by the military or the C.I.A. Government officials who have worked closely with Addington say he insists that legal flexibility is necessary, because of the in- iquity of the enemy; moreover, he does not believe that the legal positions taken by the Bush Administration in the war on terror have damaged the countrys in- ternational reputation. "He's a very smart guy, but he gives no credibility to those who say these policies are hurting us around the world," the senior Adminis- tration legal adviser said. "His feeling is that there are no costs. He'll say people are just whining. He thinks most of them would be against us no matter what." In Addington's view, critics of the Admin- istration's aggressive legal policies are just political enemies of the President. Yet, from the start, some of the sharp- est critics of detainee-treatment policies have been military and law-enforcement officials inside the Bush Administration; people close to it, like McCain; and our foreign allies. Just a few months after the Guantánamo detention centers were es- tablished, members of the Administra- tion began receiving reports that ques- tioned whether all the prisoners there were really, as Secretary of Defense Don- aId Rumsfeld had labelled them, "the worst of the worst." Guter said that the Pentagon had originally planned to screen the suspects individually on the battlefields in Mghanistan; such "Arti- cle 5 hearings" are a provision of the Ge- neva Conventions. But the White House cancelled the hearings, which had been standard protocol during the previous fifty years, including in the first Gulf War. In a January 25,2002, legal mem- orandum, Administration lawyers dis- missed the Geneva Conventions as "ob- solete," "quaint," and irrelevant to the war on terror. The memo was signed by Gonzales, but the Administration lawyer said he believed that "Addington and Flanigan were behind it." The memo ar- gued that all T aliban and AI Qgeda de- tainees were illegal enemy combatants, which eliminated "any argument regard- ing the need for case- by-case determina- tion of P.O.W. status." Critics claim that the lack of a careful screening process led some innocent detainees to be impris- THE NEW YORKER, JULY 3, 2006 53